City of San Antonio v. Ashton

• Decision Date: 08 February 1911
• Citation: 135 S.W. 757
• Parties: CITY OF SAN ANTONIO v. ASHTON.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

135 S.W. 757

CITY OF SAN ANTONIO v. ASHTON.^†

Court of Civil Appeals of Texas.

February 8, 1911.

On Motion for Rehearing, March 29, 1911.

Appeal from District Court, Bexar County; J. L. Camp, Judge.

Action by John Ashton against the City of San Antonio. Judgment for plaintiff, and defendant appeals. Affirmed.

Ryan & Ryan, for appellant. Terrell & Terrell, T. J. Newton, and Will A. Morriss, for appellee.

JAMES, C. J.

Plaintiff, Ashton, in his amended petition filed February 11, 1908, alleged that on or about April 22, 1906, about 3 o'clock a. m., he was walking across the northeastern part of Main Plaza, along a place which has been for many years dedicated to the public use as a street or passway for public travel, and for many years constantly used by the public as a street or passageway for public travel, and which for all intents and purposes is a street in the city of San Antonio, and that while walking across same he tripped and fell over an iron bar which had been driven in the ground or blocks of said plaza and left protruding above same, causing him to fall and break his leg; that the city knew that said bar was so protruding, or could have known by the use of ordinary care that same was left in an unsafe and unprotected condition for people walking thereon, especially at night, and permitted said bar to be placed and kept in its said condition and position, all of which was known, or could have been known, by the use of ordinary diligence and care; that said bar had been for some time in said position and the city suffered it to remain so, and that said negligence of the city in permitting it to remain in said position caused the injury to plaintiff. On November 14, 1906, the city filed answer, excepting to plaintiff's original petition for the reason that the same did not show that the notice required by defendant's charter as a condition precedent to plaintiff's suit had been given as required by the charter, and pleading a general denial; also pleading that plaintiff's injury, if any, was not due to the city's negligence; that the city had no notice of the alleged defect, and could not have known of it by the use of ordinary diligence; that the alleged obstruction was patent to plaintiff, and also that he was guilty of contributory negligence; that plaintiff was a trespasser where he claims he was hurt, and that he was at the time engaged in business as a hack driver, and had his hack stationed at a place which was contrary to the ordinance and police regulations of the city, and where he had no right to station same, and, if he was injured, he was injured in passing over said plaza to the place where his hack was stationed, and that, if he had complied with the ordinance and regulation, he would not have stationed his hack at such place and would not have been injured; that he was a trespasser on the plaza and premises where he claims to have been hurt, and that the same had been set apart for the use of the San Antonio Spring Carnival Association by the city authorities, which association was in exclusive possession of the same at that time, and that neither the said association nor the city had given plaintiff any license or permission to be there then, and he was at the place where he claims to have been hurt in violation of the right of said association; that plaintiff was merely a licensee, and if he had any authority whatever to use said plaza, and, if the obstruction existed, he knew of the same and assumed the risk thereof, and that the obstruction, if it existed, was the act of said association, which was in control of said portion of the plaza at the time of the alleged injury and caused said obstruction to be placed there, that the city did not permit same to be so placed, and the said association is primarily liable therefor, and prayed for citation to said association and that, if any judgment be recovered against the city, that it have judgment over against it. The association was brought in and answered.

It appears from the record that on October 26, 1908, a trial was had, and on that day the court overruled defendant's exceptions to the original petition, but, notwithstanding the ruling, plaintiff filed a trial amendment setting up the fact that the notice of plaintiff's injury was given the mayor as required by the charter. A new trial was granted in December, 1908. The pleadings stood in this condition in January, 1910, when the case was last tried; that another trial amendment appears to have been then filed substantially as the former one as to said fact of notice. We refer to these conditions because appellant bases an assignment of error upon them. The trial resulted in a verdict in favor of plaintiff against the city for $1,800, with recovery over by the city against the carnival association. The city prosecutes this appeal.

Appellant's assignments Nos. 1, 2, 3, and 4 relate to a question of pleading in reference to the notice of plaintiff's injury required by the charter to be given the mayor within 90 days after its occurrence. Section 46 of the charter reads: "Before the city of San Antonio shall be liable for damages of any kind, the person injured, or some one in behalf of such person, shall give the mayor notice in writing of such injury within 90 days after the same has been received, stating in such notice when, where, and how the injury occurred and the extent thereof." The force of the special exception to the petition was overcome by the filing of the trial amendment. It is one of appellant's contentions that the last filing of the trial amendment was improper; that the first filing thereof was proper only for the purposes of the former trial at which it was filed, but that more than 12 months elapsed between that and the recent trial, consequently the pleading should have been incorporated in an amended pleading, and not in the form of a trial amendment. Appellant upon substantially this ground demurred specially to the last trial amendment. We are of opinion that if the last trial amendment had not been filed at all, or if it had been stricken out in response to the demurrer, the trial amendment first filed was still on file and was sufficient. Plaintiff was not required to replead and embody all of his pleadings in an amended petition, unless ordered by the court to do so. He could proceed to trial on his pleadings as they stood, including his trial amendment, without repeating his trial amendment on the second trial. The said assignments are overruled.

The fifth and sixth assignments raise the question of the sufficiency of the trial amendment, in that "said trial amendment does not give the day, date, or time of such notice, nor on whom served nor the name of such mayor, nor the character of such service," and that "the allegations thereof are mere conclusions of the pleader, and do not allege the facts thereof." The allegations were in the terms of the charter provision, and this was sufficient pleading. Plaintiff was under no necessity of pleading the evidence.

Appellant's seventeenth assignment is overruled. It complains of the action of the court in refusing a continuance. The order overruling the application was excepted to, but there is no bill of exception on the subject. Railway v. Mallon, 65 Tex. 115; Simpson v. Texas Tram Co., 51 S. W. 655.

The seventh assignment is that the court erred in refusing to instruct the jury to return the verdict for the defendant. Under this, we have the proposition that plaintiff failed to prove that notice was given as required by section 46 of the charter, and we find, as stated by appellant, that the statement of facts fails to disclose any testimony on that subject. We overrule the assignment upon the authority of Ellis v. Brooks, 101 Tex. 591, 102 S. W. 96, 103 S. W. 1196, and I. & G. N. R. R. Co. v. Owens, 124 S. W. 212. The motion for new trial did not raise this question of insufficiency of the evidence to support the verdict, and the above cases hold that such question cannot be raised in this court under an assignment of error complaining of the refusal of a peremptory instruction. Not only did the motion for new trial not raise such question, but, where it refers to the subject of the notice, it shows that there was some testimony of it. The third ground in the motion reads: "The court erred in admitting in evidence the notice of injury served on the mayor, because not sufficient." Under this, if assigned, we might have passed on the sufficiency of such evidence, but, it not being in the statement of facts, we are unable to do so.

The eighth assignment is that the uncontroverted evidence showed that Ashton was a trespasser on that part of the plaza where he was injured, and appellant's proposition is that, the uncontroverted proof showing that he was a public hack driver who had stationed his hack in a place forbidden by city ordinance and by the police authorities, and that he himself was transacting such business at a place lawfully closed to him in violation of the ordinances and orders of the police authorities, he was a trespasser in law, and therefore guilty of negligence per se, precluding a recovery. There is no merit in the proposition. Say the testimony showed that plaintiff had his hack stationed for the time being at a prohibited place for such use, his injury and his hack had no connection with each other, except that he was in the act of going along the plaza back in the direction of his hack when he went against the obstruction in the plaza. His hack was standing in such place. He had gone over to the Elite corner on the sidewalk opposite the place, and while there he received a telephone call. To get to the telephone stand he had to go back by his hack to the telephone booth a little way beyond it, which all the evidence shows he was permitted to do by the authorities, using the open intervening space across the plaza to the booth for the purpose. He had received a call,...